Does Zivotofsky v. United States Threaten the Validity of the Helms-Burton Act?

Cuba has seen many changes during the Obama Administration. There has been a continual loosening of restrictions and admittances of more and more travel permits to the island. However, there is a question as to whether the Administration’s measures have tampered with Congress’s intent as laid out in the Helms-Burton Act or LIBERTAD Act of 1996. The Act codified the embargo against Cuba and made clear that in order for the U.S. government to change its stance, it would require guarantees by the Cuban government, including the overthrow of the Castro regime and a transitory democratic government in Cuba.

While Obama’s critics have argued that the Executive Branch’s loosening of restrictions without these guarantees by the Cuban government is a flagrant violation of the Helms-Burton Act, these same critics may have a new concern looming over their heads. A question may arise as to whether the Supreme Court’s decision in

will override the requirements presented in the Helms-Burton Act and allow the President to continue his own agenda with Cuba without the approval of Congress.

In that decision, rendered in June of last year, the Court ruled that the President had the exclusive power to recognize foreign states, thereby overriding the Foreign Relations Authorization Act §214(d). Zivotofsky was born to U.S. citizens in Jerusalem and his mother had asked the American Embassy to put “Israel” as his place of birth. Congress had passed §214 (d), which explicitly stated that U.S. citizens born in Jerusalem would have “Israel” written on their passports. The statute, however, was in direct conflict with the Executive Branch’s position that no particular sovereign controlled Jerusalem.

In an opinion by Justice Kennedy, the Court placed the President in lowest ebb under the Youngstown Sheet & Tube Co. v. Sawyer framework. The President, therefore, could only rely on those powers that were enumerated in Article II of the Constitution. The Court used the Reception Clause, Art. II, §3, to infer that the President has the power to recognize other nations. Kennedy stated that the President “is capable, in ways Congress is not, of engaging in the delicate and often secret diplomatic contacts that may lead to a decision on recognition.” After determining that the President alone has the power to recognize foreign states, the Court then ruled that §214 (d) was inconsistent with this right and therefore unconstitutional. Kennedy observed that Youngstown is clear: “when a Presidential power is exclusive, it disables the Congress from acting upon the subject.” Therefore, Congress cannot pass a law that effects formal recognition, because Congress would be exercising the President’s exclusive power itself.

In dissent, Chief Justice Roberts argued that it is doubtful that the right to recognize foreign nations is a conclusive and preclusive power granted to the President. First, Roberts makes a textualist argument stating that the Reception Clause is “framed as an obligation rather than an authorization, [and] appears alongside the duties imposed on the President by Article II, Section 3, not the powers granted to him by Article II, Section 2.” Additionally Roberts noted that the authority to make treaties and appoint ambassadors is shared by both Congress and the President. Even if, Roberts argued, the President does have the conclusive and preclusive power to recognize foreign governments, “the statute at issue does not implicate recognition.” Roberts made clear that what is at stake is the person’s right to identify themselves on their passport, not recognition of a foreign government.

If the President does have the conclusive and preclusive power to recognize foreign sovereigns, the Executive Branch can argue that it had every right to remove Cuba from the State Sponsor Terrorism List and reopen the U.S. embassy in Havana. While Congress may argue that the Helms-Burton Act is clear in its resolve that in order to recognize Cuba in the realm of international affairs there must be a government transition to democracy, the Executive Branch can easily argue that in Zivotofsky, the President’s authority overrode §214 (d). As mentioned, Obama has slowly started to lift restrictions on Cuba and in a way has “recognized” the still Communist regime. While a congressional challenge to President Obama’s actions in Cuba is far from likely, if his actions are challenged, Zivotofsky has provided him with additional ammunition to support greater U.S. intervention in Cuba.